North Belconnen Community Association Inc Summary

[2024] FWCA 3519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

North Belconnen Community Association Inc

(AG2024/3313)

NORTH BELCONNEN COMMUNITY ASSOCIATION INCORPORATED ENTERPRISE AGREEMENT 2024-2028

Children’s services industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 4 OCTOBER 2024

Application for approval of the North Belconnen Community Association Incorporated Enterprise Agreement 2024-2028

Introduction

North Belconnen Community Association Inc (the Employer) has made an application for approval of an enterprise agreement known as the North Belconnen Community Association Incorporated Enterprise Agreement 2024-2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement will apply to employees who are covered by either the Children’s Services Award 2010 (Children’s Services Award) or the Educational Services (Teachers) Award 2020 (Teachers Award).

Delegates’ Rights Term

The Agreement does not contain a delegates’ rights term, as required by s. 205A(1) of the Act. Pursuant to s. 205A(2) of the Act, the workplace delegates’ rights term from the relevant Awards is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Appendix B.

Award Incorporation

Clause 3 of the Agreement states that the Agreement applies to the exclusion of any Award (other than where there is a specific reference to an Award term within the Agreement), previous Enterprise Agreements that applied to the employer and its employees, and any other Modern Award, registered industrial instrument (however named or described) and/or unregistered industrial agreement that applies to employees covered by the Agreement. The Agreement, however, is silent on all entitlements including Schedule A of the Teachers Award, hours of work, part-time conditions, shift, weekend, public holiday and overtime penalties as well as numerous allowances which are prescribed under both Awards. If the Agreement operates to the exclusion of the Awards, the lack of entitlements under the Agreement would result in the BOOT not being satisfied.

The Employer subsequently provided undertakings that the Agreement incorporates the Children’s Services Award and the Teachers Award where the Agreement is silent on Award entitlements and where the Award provisions are more advantageous to employees. The Employer has also advised that the Agreement covers only permanent employees and that it uses the same classifications as the Children's Services Award and the Teachers Award 2020. Clause 10 of the Agreement provides that pay rates will be 15% above the relevant Award rates for these classifications.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Appendix A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 October 2024. The nominal expiry date of the Agreement is 30 June 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the North Belconnen Community Association Incorporated applied for approval of its enterprise agreement for the period 2024 to 2028. The Association, representing the interests of its employees, sought the approval to ensure that the agreement would provide a fair and reasonable framework for the working conditions of its members. The Fair Work Commission is the tribunal that oversees the registration and approval of enterprise agreements under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement met the statutory requirements for approval, including whether it provided for fair and reasonable terms and conditions, and whether it complied with the procedural requirements for registration. Specifically, the Commission had to consider whether the agreement was genuinely negotiated and whether it adhered to the relevant provisions of the Act, including the "better-off-overall test" and the requirement for adequate protections against exploitation.

After examining the agreement and the submissions made by both parties, the Commission found that the agreement satisfied the statutory criteria for approval. The agreement was deemed to be genuinely negotiated, and the Commission was satisfied that it provided for fair and reasonable terms and conditions for the employees. The Commission also found that the agreement complied with the procedural requirements for registration. Consequently, the Commission approved the enterprise agreement, acknowledging that it met the necessary legal standards for such agreements.

The Fair Work Commission approved the North Belconnen Community Association Incorporated Enterprise Agreement 2024-2028, setting out the terms and conditions of employment for the employees covered by the agreement. This decision underscores the importance of ensuring that enterprise agreements are negotiated in good faith and provide fair and reasonable terms for employees, while also adhering to the statutory requirements for registration.

North Belconnen Community Association Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established